Uttarakhand High Court
Chandola To Challenge The Same. These ... vs Vice on 24 November, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
HON'BLE SRI JUSTICE RAMESH CHANDRA KHULBE
SPECIAL APPEAL NO. 376 OF 2022
24TH NOVEMBER, 2022
BETWEEN:
Uttarakhand Vidhan Sabha Secretariat Dehradun & others
.....Appellants.
And
Bhupendra Singh Bisht & others ....Respondents.
Counsel for the Appellants : Mr. Amit Anand Tiwari, Mr.
Parikshit Saini and Mr. Arjun
Garg, learned counsels.
Counsel for the Respondents : Mr. A.S. Rawat, learned Senior
Counsel assisted by Mr. R.S.
Bisht, learned counsel.
With
SPECIAL APPEAL NO. 389 OF 2022
BETWEEN:
Uttarakhand Vidhan Sabha Secretariat Dehradun & others
.....Appellants.
And
Balwant Singh Joshal ....Respondent.
Counsel for the Appellants : Mr. Amit Anand Tiwari, Mr.
Parikshit Saini and Mr. Arjun
Garg, learned counsels.
Counsel for the Respondent : Mr. Anand Singh Mer, proxy
counsel for Mr. Amar Murti
Shukla, learned counsel.
With
SPECIAL APPEAL NO. 399 OF 2022
BETWEEN:
Uttarakhand Vidhan Sabha Secretariat Dehradun & others
.....Appellants.
And
Pinky and others ....Respondents.
2
Counsel for the Appellants : Mr. Amit Anand Tiwari, Mr.
Parikshit Saini and Mr. Arjun
Garg, learned counsels.
Counsel for Respondent Nos.1 & 2 : Mr. Rakesh Thapliyal, learned
Senior Counsel assisted by Mr.
Ananya Thapliyal, learned
counsel.
Counsel for Respondent No.3 : Mr. Pradeep Joshi, learned
Additional Chief Standing
Counsel.
The Court made the following:
COMMON JUDGMENT:(per Hon'ble The Chief Justice Sri Vipin Sanghi) These three special appeals arise out of identical or similar orders passed by the learned Single Judge in a batch of writ petitions, preferred by the respondents-writ petitioners. The limited challenge raise in these appeals is to the direction issued by the learned Single Judge staying the termination orders in respect of the respondents-writ petitioners, and directing that they shall be allowed to work and be paid the remuneration as before, i.e. before their termination.
2. In the years 2016, 2020 and 2021, ad hoc appointments were made by the State Government to the various posts in the Vidhan Sabha Secretariat. It appears that in relation to the said appointments, a writ petition, being Writ Petition (PIL) No.66 of 2017, was filed by one Mr. Rajesh Chandola to challenge the same. These appointments were made on ad hoc basis. Admittedly, they were made without calling for applications from the public at large, and without following a transparent method of recruitment. The Division Bench of this Court disposed of the said writ petition. In the 3 course of the judgment, the Division Bench observed in Paragraph No.15 that "the said appointments had not been made by the Selection Committee, as contemplated under Rule 17 (1) of the Uttarakhand Vidhan Sabha Secretariat Service (Recruitment and Conditions of Service) Rules, 2011." The direction issued by the Court in Paragraph No.29 of the said judgment, inter alia, was to the effect that the regimen of Rule 17 of the aforesaid Rules could not have been violated. The respondents were, therefore, required to look into the appointments made in regard to the category of Assistant Review Officer and Additional Private Secretary.
3. It appears that the learned Speaker of the Legislative Assembly received complaints alleging completely illegal and arbitrary manner, in which, ad hoc appointments have been made in the years 2016, 2020 and 2021, and the learned Speaker constituted a Three Member Committee to examine the said appointments. The Committee made its report on 20.09.2022. The findings returned by the Committee in the said report, inter alia, read as follows:-
"11- izLrj la[;k 10 esa mYys[k dh x;h fu;ekofy;ksa ds vk/kkj ij fo/kku lHkk lfpoky; esa lh/kh HkrhZ ds vk/kkj ij dh x;h vusd fu;qfDr;ka fu;e fo:) ik;h x;h gSA bu fu;qfDr;ksa esa fu;ekofy;ksa ds vusd izkfo/kkuksa dk Li'V mYy?kau fd;k x;k gS rFkk viuk;h x;h izfØ;k fof/k lEer ugh gSA bu fu;qfDr;ksa esa fu;ekofy;ksa ds fuEu izkfo/kkuksa dk Li'V :Ik ls mYy?kau fd;k x;k gS %& 4 ¼i½ lsok ds fofHkUu inksa ij lh/kh HkrhZ ds fy;s fu;eksa esa fu/kkZfjr p;u lfefr dk xBu ugha fd;k x;k gSA bl izdkj rnFkZ fu;qfDr;ka p;u lfefr ds ek/;e ls ugha dh x;h gSA ¼ii½ rnFkZ fu;qfDr fd;s tkus gsrq dksbZ foKkiu ugha fn;k x;k vkSj u gh dksbZ lkoZtfud lwpuk nh x;h gS vkSj u gh jktdh; jkstxkj n¶rj ls uke izkIr fd;s x;s gSaA ¼iii½ rnFkZ fu;qfDr fd;s tkus gsrq bPNqd vH;fFkZ;ksa ls vkosnu i= ugha ekaxs x;sA ek= O;fDrxr vkosnu i=ksa ij fu;qfDr iznku dh x;h gSA bu O;fDrxr vkosnu i=ksa esa fo/kku lHkk lfpoky; esa fu;qfDr fn;s tkus dk vuqjks/k fd;k x;k rFkk bu O;fDrxr vkosnu i=ksa ij fu;qfDr iznku dj nh x;h gSA ¼iv½ rnFkZ fu;qfDr fd;s tkus gsrq dksbZ izfr;ksfxrk ijh{kk vk;ksftr ugha dh x;hA ¼v½ rnFkZ fu;qfDr djrs le; lsok fu;ekofy;ksa ds izkfo/kkuksa ds vuqlkj mRrjk[k.M jkT; dh vuqlwfpr tkfr;ksa vuqlwfpr tu tkfr;ksa] vU; fiNM+k oxZ vU; Jsf.k;ksa ds vH;fFkZ;ksa dk izfrfu/kRo lqfuf"pr djus dh dkjZokbZ ugha dh x;hA 15- fo/kku lHkk lfpoky; }kjk o'kZ 2001 ls o'kZ 2022 rd dh xbZ dqy 396 rnFkZ fu;qfDr;ksa esa ls o'kZ 2001 ls 2015 rd dh 168 rnFkZ fu;qfDr;ksa] ftudk fofu;rhdj.k o'kZ 2013 rFkk 2016 esa fd;k x;k gS dks ?kVkus ds Ik"pkr "ks'k 228 rnFkZ fu;qfDr;ka tks o'kZ 2016] o'kZ 2020] rFkk o'kZ 2021 esa dh x;h gSa] os lHkh bl izfrosnu ds izLrj la[;k 11 rFkk izLrj la[;k 12 esa crk;s x;s dkj.kksa ls voS/k gSa rFkk fujLr fd;s tkus ;ksX; gSaA bl izdkj o'kZ 2016 esa dh x;h 149] o'kZ 2020 esa dh x;h 6 rFkk 2021 esa dh x;h 72 rnFkZ fu;qfDR;ka voS/k gSaA o'kZ 2016] 2020 rFkk 2021 esa dh x;h ;s rnFkZ fu;qfDr;ka lyaXud&7 ij nf"kZr gSA blds vfrfjDr ,d rnFkZ fu;qfDRk tks o'kZ 2003 esa gqbZ gS rFkk ftl dkfeZd dks fofu;ferhdj.k gsrq ik= ugh ik;k x;k mldks lfEefyr djrs gq, dqy 228 rnFkZ fu;qfDr;ka voS/k rFkk fujLr djus ;ksX; gSA"
4. On the basis of the aforesaid report, the letters of termination were issued to the respondents-writ petitioners. In all 228 appointments which were made on ad hoc basis 5 dehors not only just the Rules, but also the minimum required compliance of norms of transparency, were terminated. Following the termination, the aforesaid writ petitions were preferred by the respondents, in which, same and similar impugned orders came to be passed by the learned Single Judge.
5. As aforesaid, the learned Single Judge has stayed the termination and directed the appellant-Vidhan Sabha to pay the salaries to the writ petitioners and also to take services from them. To that limited extent, the appellants are aggrieved, and assail the impugned order before us.
6. Mr. A.S. Rawat, learned Senior Counsel, who appears on advance notice on behalf of the respondents-writ petitioners has, firstly, argued that the present special appears should not be entertained in the light of the judgment of the Full Bench of the Allahabad High Court in the case of "Ashutosh Sahotriya & others vs. Vice Chancellor, Dr. B.R. Ambedkar University Agra & othes, Special Appeal No.1140 of 2008 and other connected special appeals, dated 04.09.2015." The issues considered by the Full Bench in the said judgment were as follows:-
"(1) Where a learned Single Judge while hearing a writ petition calls for counter and rejoinder affidavits, but does not pass any order or refusing a stay, will the order amount to a refusal of interim relief to the petitioner either temporarily or 6 impliedly and a 'judgment' within the meaning of Chapter VIII Rule 5 of the Rules of the Court, 1952;
(2) Does an order which adversely affects the valuable rights of a party by a temporary or implied refusal of interim relief have the trappings of a judgment."
7. The said judgment has no relevance in the present fact situation, since the learned Single Judge has passed the interim order after hearing learned counsels, and after the appellants had filed their counter-affidavits. The learned Single Judge has granted the interim relief to the respondents-writ petitioners, as taken note hereinabove. The said preliminary objection of Mr. Rawat is, therefore, rejected.
8. The submission of learned counsel for the appellants is that the grant of interim stay of the termination by the learned Single Judge is contrary to the law laid down by the Supreme Court against grant of such interim relief, apart from it being unjustified even on, prima facie, evaluation of the case. Firstly, learned counsel points out that on 06.02.2003, the State had imposed a complete ban on making of ad hoc appointments. The order issued in this regard, inter alia, states as follows:-
"Js.kh ^x* rFkk Js.kh ^?k* ds fdlh Hkh in ij nSfud osru@rnFkZ@lafonk@fu;r osru ij fu;qfDr ugh dh tk;sxhA bl izdkj dh fu;qfDr;ksa ij iw.kZ :Ik ls izfrcU/k jgsxkA ;fn fdUgh vifjgkZ; ifjfLFkfr;ksa esa rnFkZ fu;qfDr fd;k tkuk vko";d le>k tkrk gS rks ,slk leqfpr izfØ;k fu/kkZfjr djrs gq, ;Fkk lEHko fu;ekoyh esa fu/kkZfjr izfØ;k ds vuq:Ik gh dkfeZd foHkkx dh lgefr ds Ik"pkr ek0 ea=hifj'kn ds vuqeksnu ls gh fd;k tk ldsxkA ,slh 7 fu;qfDr vYidkfyd gksxhA mijksDr ls fHkUu :Ik esa dh x;h vfu;fer fu;qfDr;ksa dks xEHkhj dnkpkj le>k tk;sxkA bl izdkj dh fu;qfDr;ksa ds mijkUr osru vkgj.k ds izdj.k izdk"k esa vkus ij lEcfU/kr dks'kkf/kdkjh@ofj'B dks'kkf/kdkjh }kjk mudk osru dkV fn;k tk;sxkA"
9. He submits that the ad hoc appointments granted to the employees in the year 2016, 2020 and 2021, were so grated on the basis of, more or less, identical applications. A sample of one such application has been produced before us, which reads as follows:-
"Lfpo vij futh lfpo ds in ij rnFkZ fu;qfDr djsaA lsok esa] ek0 v/;{k th] fo/kkulHkk mRrjk[k.MA egksn;] eSa Lukrd mikf/k /kkjd vH;FkhZ ds :Ik esa fo/kku lHkk esa fdlh in ds fy, viuk ;g izkFkZuk i= izLrqr dj jgk gwwWA esjk foLr`r ckW;ksMkVk bl izkFkZuki= ds lkFk layXu gSA vkidh vfr d`ik gksxh ;fn vki eq>s fo/kku lHkk lfpoky; esa "kSf{kd ;ksX;rk ds vuqlkj fdlh in ij fu;qfDr iznku djus dh d`ik djsxsaA lsok dk volj iznku fd;s tkus ij eSa viuh loZ {kerk ls mRre ls mRre dk;Z d:WxkA /kU;okn izkFkh%& HkwisUnz flag fc'V"
10. It is argued that the applicant did not even apply against any particular post, and stated that "he be appointed against any post available." This application is also undated. On the said application, orders were issued by the then Speaker directing the Secretary to make appointment of the applicant- Mr. Bhupendra Singh Bisht, as the Additional Private Secretary. As aforesaid, no applications were invited; 8 no public notice issued; no screening or selection process held.
11. Learned counsel for the appellant, however, points out that in respect of six applicants, who had applied for the post of Driver, in their applications, they had stated that they be appointed as Drivers against the vacancies for the said post.
12. Learned counsel has also referred to the office note dated 22.12.2016, prepared by the Vidhan Sabha Secretariat, taking note of the ban on ad hoc appointments. The relevant office note referred to by learned counsel for the appellants reads as follows:-
"mDr ds Øe esa ;g Hkh laKku esa ykuk gS fd mRrjk[k.M "kklu }kjk tkjh "kklukns "k la[;k&1803@dkfeZd&2@2002] fnukad 06 Qjojh 2003 esa leLr foHkkxk/;{k@dk;kZy;k/;{k] mRrjk[k.M dks lafonk@rnFkZ fu;qfDr u fd;s tkus gsrq Hkh funsZf"kr fd;k x;k gSA fofnr gS fd bl lfpoky; esa dk;kZy; Kki la[;k&132@fo-l- @vf/k0@08@2000 fnukad 18-01-2001] la[;k&237@fo-l- @vf/k0@03@2000 fnukad 28-02-2001] la[;k& 1192@fo-l- @vf/k0@03@2000 fnukad 12-09-2002] la[;k&1541@fo-l- @03@vf/k0@2000 fnukad 06-07-2002] la[;k& 728@fo-l-@vf/k0@03@ 2000 fnukad 10-05-2012] la[;k&232@fo0l0@vf/k0@03@2000 fnukad 05- 03-2014 }kjk }kjk osru eku 9300&34800] xzsM is&4800 esa vij futh lfpo ds 24 in l`ftr gSA ek0 v/;{k] fo/kku lHkk }kjk Jh vfer jkoy] Jh HkwisUnz flag fc'V] Jh dey flag] Jh dfiy /kksuh] Jh idat flag] Jh dSyk"k vf/kdkjh] Jh dqynhi flag] Jh eukst dqekj] Jherh eksfudk lseoky] dqekjh Hkxorh lk.kh] Jherh iwue vf/kdkjh] Jh gseUr tks"kh] Jherh lfjrk ukFk] Jherh n;k 9 uxjdksVh] Jh gjsUnz cksjk] Jh v{kr "kekZ] Jh dSyk"k tks"kh dks vij futh lfpo ds in ij rnFkZ fu;qfDr fn;s tkus ds vkns"k ikfjr fd;s x;s gSA"
(emphasis supplied)
13. On the aforesaid office note, the then Speaker directed that stopgap arrangement be made by making appointments on ad hoc basis.
14. Attention has also been drawn to the appointment letters issued to such ad hoc appointees which, inter alia, stated that "the ad hoc appointment could be terminated at any point of time without prior intimation." The said communications, inter alia, stated as follows:-
"1. mijksDr fu;qfDr;ksa rnFkZ gksxh rFkk fcuk fdlh iwoZ lwpuk ds dHkh Hkh lekIr dh tk ldrh gSA in /kkjd dks 15 fnol ds vUnj viuh ;ksxnku vk[;k izLrqr djuh gksxhA fu;r vof/k rd ;ksxnku vk[;ka izLrqr u djus ij mi;qZDr fu;qfDr Lor% gh lekIr le>h tk;sxhA
2. mi;qZDr in /kkjkdksa dks N% ekg ds vUnj rduhdh Kku dh ijh{kk mRrh.kZ djuh vfuok;Z gksxhA fu/kkZfjr xfr esa mDr rduhdh ijh{kk mRrh.kZ u dj ikus dh fLFkfr esa mudh rnFkZ fu;qfDr lekIr dh tk ldrh gSA"
(emphasis supplied)
15. Learned counsel submits that the Personnel Department of the Government of Uttarakhand objected to the said appointments, pointing out that the same would be illegal. The relevant office note dated 04.01.2017 of the Personnel Department, inter alia, states as follows:-
"3- dkfeZd uhfr rFkk dkfeZd izcU/ku dk tgka rd iz"u gS ;g Li'V djuk mfpr gksxk fd rnFkZ fu;qfDr rFkk vU; izdkj dh fu;qfDr ij dkfeZd foHkkx }kjk o'kZ 2013 esa izfrcU/k yxk;k x;k gSA l&izfr rnFkZ fu;qfDr fd;s tkus dh dksbZ uhfr fo|eku ugha gSA blds lkFk&lkFk rnFkZ inksUufr dk tgka 10 rd iz"u gS rnFkZ inksUufr ds lEcU/k esa jkT; xBu dh frfFk ls vkfrfFk rd dkfeZd foHkkx }kjk dksbZ Hkh uhfr fu/kkZfjr ugha dh x;h gSA fcuk uhfr ds bl izdkj dh fu;qfDr;ka rFkk inksUufr djuk vfof/kd fu;qfDRk dh Js.kh esa vk;sxkA 5- lfpo dukZVd jkT; cuke mek nsoh esa ek0 mPpre U;k;ky; }kjk fn;s x;s fu.kZ; ds vkyksd esa Hkh bl izdkj dh dk;Zokgh djuk U;k; fu.kZ; ds fo:) gksxk izlaxxr izdj.k esa mfpr ;gh gksxk fd iz"kkldh; foHkkx dks dkfeZd foHkkx }kjk tkjh fnukad 19-12-2016 rFkk 27-12-2016] ftudh ,d&,d izfr;ka i=koyh esa j[k nh xbZ gS] ds vuqlkj dk;Zokgh djuh pkfg;s D;ksafd rnFkZ :Ik ls fu;qDr djuk mfpr rFkk fof/kd ugh gSA"
(emphasis supplied)
16. The Personnel department specifically referred to the celebrated judgment of the Supreme Court in Uma Devi to state that such ad hoc appointments without following a transparent procedure would be illegal.
17. Even the Finance Department had similarly raised objections wherein, the Department, inter alia, states as follows:-
"3- dkfeZd foHkkx ds vkns"k la[;k&1803 fnukad 06 Qjojh] 2003 ds ek/;e ls rnFkZ@lafonk@fu;rosru@nSfud osru ij dh tkus okyh fu;qfDr;ksa ij izfrcU/k yxk;k x;k gSA 4- fo/kkulHkk lfpoky; }kjk lafonk ds dkfeZdksa dks rnFkZ :Ik ls j[ks tkus ds lEcU/k esa dkfeZd foHkkx i`'B&3 ij viuh vlgefr O;Dr dh x;h gSA izdj.k ij dkfeZd foHkkx dh mDr vlgefr ls foRr foHkkx Hkh lger gSA i=koyh mPpkns"k gsrq izLrqrA"
18. However, the then Chief Minister on 04.01.2017, granted approval to make such ad hoc appointments, disregarding the legal objections raised by the aforesaid departments.
11
19. Learned counsel for the appellants submits that in the aforesaid light, the appointments of respondents-writ petitioners and others, made on ad hoc basis without a public process were, completely, illegal.
20. He submits that in any event of the matter, in service jurisprudence stay of a termination order cannot be granted. He has placed reliance, firstly, on the judgment of the Supreme Court in the case of State of Haryana vs. Suman Dutta, (2000) 10 SCC 311. The Supreme Court in this condition held as follows:-
"2. This appeal by the State of Haryana is directed against an interim order passed by the High Court of Punjab & Haryana at Chandigarh in CWP No.10493 of 1998, staying the order of termination. The positive case of the State is that the respondent did not pass the necessary examination in shorthand and typing. We are not expressing any opinion as to whether the services of an employee could be terminated for not passing the shorthand and typewriting test, but we are clearly of the opinion that the High Court erred in law in staying the order of termination as an interim measure in the pending writ petition. By such interim order if any employee is allowed to continue in service and then ultimately the writ petition is dismissed, then it would tantamount to usurpation of public office without any right to the same. We, therefore, set aside the impugned order of the High Court staying the order of termination. Needless to mention, the High Court will decide the writ petition on its own merits without being in any way influenced by our interfering with the impugned order."
21. Reliance is also placed on the judgment of the Supreme Court in the case of State of Uttar Pradesh vs. Sandeep Kumar Balmiki, (2009) 17 SCC 555. The 12 Supreme Court observed in Paragraph Nos.5 and 6 of this judgment as follows:-
"5. In our view, the interim order granted by the High Court staying the order of termination could not be passed at this stage in view of the fact that if such relief is granted at this stage, the writ petition shall stand automatically allowed without permitting the parties to place their respective cases at the time of final hearing of the writ petition. In this case also, the appellants have not yet filed counter-affidavit to the writ petition of the respondents.
6. That being the position and in view of the fact that the final relief could not be granted at the interim stage, we set aside the impugned order and vacate the interim order passed by this High Court."
22. Learned counsel for the appellant has also placed reliance on the judgment of the Supreme Court in the case of Renu vs. District & Sessions Judge, (2014) 14 SCC 50. Reliance is placed on the following paragraphs of this decision.
"5. The rule of law is the basic feature of the Constitution. There was a time when REX was LEX. We now seek to say LEX is REX. It is axiomatic that no authority is above law and no man is above law. Article 13(2) of the Constitution provides that no law can be enacted which runs contrary to the fundamental rights guaranteed under Part III of the Constitution. The object of such a provision is to ensure that instruments emanating from any source of law, permanent or temporary, legislative or judicial or any other source, pay homage to the constitutional provisions relating to fundamental rights. Thus, the main objective of Article 13 is to secure the paramountcy of the Constitution, especially with regard to the fundamental rights. The aforesaid provision is in consonance with the legal principle of "rule of law" and they remind us of the famous words of the English jurist, Henry de Bracton -- "The King is under no man but under God and the Law". No one is above law. The dictum -- "Be 13 you ever so high, the law is above you" is applicable to all, irrespective of his status, religion, caste, creed, sex or culture. The Constitution is the supreme law. All the institutions, be it legislature, executive or judiciary, being created under the Constitution, cannot ignore it. The exercise of powers by an authority cannot be unguided or unbridled as the Constitution prescribes the limitations for each and every authority and therefore, no one, howsoever high he may be, has a right to exercise the power beyond the purpose for which the same has been conferred on him. Thus, the powers have to be exercised within the framework of the Constitution and legislative provisions, otherwise it would be an exercise of power in violation of the basic features of the Constitution i.e. Part III dealing with the fundamental rights which also prescribes the limitations.
8. As Article 14 is an integral part of our system, each and every State action is to be tested on the touchstone of equality. Any appointment made in violation of mandate of Articles 14 and 16 of the Constitution is not only irregular but also illegal and cannot be sustained in view of the judgments rendered by this Court in Delhi Development Horticulture Employees' Union v. Delhi Admn. [(1992) 4 SCC 99 : 1992 SCC (L&S) 805 : (1992) 21 ATC 386] , State of Haryana v. Piara Singh [(1992) 4 SCC 118 : 1992 SCC (L&S) 825 : (1992) 21 ATC 403] , Prabhat Kumar Sharma v. State of U.P. [(1996) 10 SCC 62 : 1996 SCC (L&S) 1331] , J.A.S. Inter College v. State of U.P. [(1996) 10 SCC 71 : 1996 SCC (L&S) 1339] , M.P. Housing Board v. Manoj Shrivastava [(2006) 2 SCC 702 : 2006 SCC (L&S) 422] , M.P. State Agro Industries Development Corpn. Ltd. v. S.C. Pandey [(2006) 2 SCC 716 : 2006 SCC (L&S) 434] and State of M.P. v. Sandhya Tomar [(2013) 11 SCC 357].
9. In Excise Supt. v. K.B.N. Visweshwara Rao [(1996) 6 SCC 216 : 1996 SCC (L&S) 1420] , a larger Bench of this Court reconsidered its earlier judgment in Union of India v. N. Hargopal [(1987) 3 SCC 308 : 1987 SCC (L&S) 227 : (1987) 4 ATC 51 : AIR 1987 SC 1227] , wherein it had been held that insistence on recruitment through employment exchanges advances rather than restricts the rights guaranteed by Articles 14 and 16 of the Constitution. However, due to the possibility of non-14
sponsoring of names by the employment exchange, this Court held that any appointment even on temporary or ad hoc basis without inviting application is in violation of the said provisions of the Constitution and even if the names of candidates are requisitioned from employment exchange, in addition thereto, it is mandatory on the part of the employer to invite applications from all eligible candidates from open market as merely calling the names from the employment exchange does not meet the requirement of the said articles of the Constitution. The Court further observed: (K.B.N. Visweshwara Rao case [(1996) 6 SCC 216 :
1996 SCC (L&S) 1420] , SCC p. 218 para 6) "6. ... In addition, the appropriate department ...
should call for the names by publication in the newspapers having wider circulation and also display on their office notice ... and employment news bulletins; and then consider the cases of all candidates who have applied. If this procedure is adopted, fair play would be subserved. The equality of opportunity in the matter of employment would be available to all eligible candidates." (emphasis supplied) (See also Arun Tewari v. Zila Mansavi Shikshak Sangh [(1998) 2 SCC 332 : 1998 SCC (L&S) 541 : AIR 1998 SC 331] and Kishore K. Pati v. District Inspector of Schools, Midnapore [(2000) 9 SCC 405 : 2001 SCC (L&S) 87].
10. In Suresh Kumar v. State of Haryana [(2003) 10 SCC 276] this Court upheld the judgment of the Punjab and Haryana High Court wherein 1600 appointments made in the Police Department without advertisement stood quashed though the Punjab Police Rules, 1934 did not provide for such a course. The High Court reached the conclusion that process of selection stood vitiated because there was no advertisement and due publicity for inviting applications from the eligible candidates at large.
12. The principles to be adopted in the matter of public appointments have been formulated by this Court in M.P. State Coop. Bank Ltd. v. Nanuram Yadav [(2007) 8 SCC 264 : (2007) 2 SCC (L&S) 883] as under: (SCC pp. 274-75, para 24) 15 "(1) The appointments made without following the appropriate procedure under the rules/government circulars and without advertisement or inviting applications from the open market would amount to breach of Articles 14 and 16 of the Constitution of India.
(2) Regularisation cannot be a mode of appointment. (3) An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation. (4) Those who come by back door should go through that door.
(5) No regularisation is permissible in exercise of the statutory power conferred under Article 162 of the Constitution of India if the appointments have been made in contravention of the statutory rules. (6) The court should not exercise its jurisdiction on misplaced sympathy.
(7) If the mischief played is so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, it will neither be possible nor necessary to issue individual show-cause notice to each selectee. The only way out would be to cancel the whole selection.
(8) When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to be set aside.
13. A similar view has been reiterated by the Constitution Bench of this Court in State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753 : AIR 2006 SC 1806] , observing that any appointment made in violation of the statutory rules as also in violation of Articles 14 and 16 of the Constitution would be a nullity. "Adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment." The Court further rejected the prayer that ad hoc appointees working for long be considered for regularisation as such a course only encourages the State to flout its own rules and would confer undue benefits on some at the cost of many waiting to compete.
14. In State of Orissa v. Mamata Mohanty [(2011) 3 SCC 436 : (2011) 2 SCC (L&S) 83] this Court dealt with the constitutional principle of providing equality of opportunity to all which mandatorily requires that vacancy must be notified in advance meaning thereby that information of the recruitment must be disseminated in a reasonable manner in public domain ensuring maximum participation of all 16 eligible candidates, thereby the right of equal opportunity is effectuated. The Court held as under: (SCC p. 452, para 36) "36. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the employment exchange or putting a note on the noticeboard, etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance with the said constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit."
(emphasis supplied)
23. In so far as the impugned order is concerned, learned counsel for the appellant submits that the learned Single Judge has not considered the aspect of prima facie case, balance of convenience and irreparable loss and injury to the appellants while granting interim relief to the respondents-writ petitioners.
24. He submits that so far as the aspect of prima facie case is concerned, the learned Single Judge has misdirected himself by observing that there is no deficiency in the working of the respondents-writ petitioners. He submits that this was not at all relevant consideration. The learned Single Judge, prima facie, found substance in the contention of the respondents-writ petitioners, that since there is no procedure prescribed for ad hoc appointments, therefore, the termination of the services of the writ petitioners, who were 17 ad hoc appointees, only on the ground of non-observance of the procedure provided in the Rules, would be unjust. He submits that, prima facie, this finding is contrary to the aforesaid judgments of the Supreme Court, inter alia, in laying down that such ad hoc appointment, which are made without following the transparent method, i.e. by granting the opportunity of participation to all eligible candidates, is not just illegal, but a nullity and backdoor appointees should go back from the same door. He further submits that the learned Single Judge also fell in error in observing that "Whether reason supplied through counter-affidavit can be considered while adjudicating the question of validity of termination order(s), or not is a debatable question." In this regard, he submits that in the case of Chairman, All India Railway Recruitment Board & another vs. K. Shyam Kumar & others, (2010) 16 SCC 614, in Paragraph Nos.44 and 45, the Supreme Court has held that when larger public interest is involved, the Rules laid down by the Constitution Bench of the Supreme Court in the case of Mohinder Singh Gill & another vs. Chief Election Commissioner, New Delhi & others, (1978) 1 SCC 405, would not be attracted, and that the State can justify its action on the basis of other materials placed before the Court in its counter-affidavit.
25. Mr. Rawat, learned Senior Counsel for the respondents-writ petitioners, has vehemently opposed the 18 present special appeals. He submits that he is appearing or the respondents, who were appointed in the year 2016 on ad hoc basis. He submits that the appointments were made in an emergent situation, since the Government of the day had decided to construct the Vidhan Sabha, and hold its session at Garisain. He further submits that under the Rules, there is silence insofar as the procedure for making ad hoc appointments is concerned. However, he places reliance on Rules 3(ज) and 4(2)(ख) of the Uttarakhand Vidhan Sabha Secretariat Service (Recruitment and Conditions of Service) Rules, 2011, as amended on 04.07.2015. Rule 3(ज) reads as follows:-
"3(ज) सेवा का सद से वह अिभ ेत है , जो इन िनयमों के पूव लागू िनयम अथवा आदे शों के अंतगत सेवा के िकसी संवग के िकसी पद पर मौिलक प से िनयु िकया गया ह अटवा ऐसे पद को धारण कर रहा हो पर ु यह िक मौिलक प से िनयु इतर सम कमचा रयों के िविनयिमतकरण के िलए िवधान सभा अ एक चयन सिमित का गठन कर सकगे जो ऐसे कमचा रयों के िविनयिमतकरण हे तु स क ि या के अनुसार कायवाही स ािदत करे गी।
पर ु यह और िक अ ारा गिठत िविनयिमतकरण सिमित िक सं ुितयों के आधार पर िविनयिमत िकये गए ऐसे इतर कमचारी संिवदा अथवा तदथ आधार पर िनयु के फल प स ंिधत पद पर कायभार हण करने की ितिथ से ही मौिलक प से सेवा का सद मन जायेगा।" (emphasis supplied)
26. Rule 4(2)(ख) of the Uttarakhand Vidhan Sabha Secretariat Service (Recruitment and Conditions of Service) Rules, 2011, as amended on 04.07.2015, reads as follows:-
"4(2)(ख)रा पाल, अ के परामश से ऐसे थायी और अ थायी पद सृिजत कर सकते ह, जैसा वह उिचत समझे।
पर ु यह िक अ , िव िवभाग के परामश के िबना अिधकारीयों/ कमचा रयों के ऐसे थायी पदों का सृजन छः माह से अनिधक अविध के िलए कर सकगे जैसा वह सभा के काय के िलए आवशयक और समीचींन समझे।"19
27. The submission of the respondents-writ petitioners is that since there is a procedure prescribed for regularization of services of the ad hoc appointees, making of ad hoc appointments is permissible under the Rules, even though, there is no express rule for that purpose. He further submits that such appointments have been made right from the year 2001, i.e. after the State of Uttarakhand is created, but no action has been taken against the said appointees.
28. We may notice the submission of learned counsel for the appellant in this regard. He submits that such appointees were regularized in service, and the Speaker is looking into the aspect as to what action can legally be taken in such cases. He submits that there is no concept of negative equality, and the respondents-writ petitioners have to stand on their own feet and make out a case on merits in their favour.
29. It is further submitted by Mr. Rawat, that the services of the respondents-writ petitioners were terminated without giving any time or notice. The respondents have become overage, and they have families to support. They have been serving since 2016.
30. We have considered the submissions of learned counsels, and we are of the view that the learned Single Judge fell in error in granting interim stay of termination of 20 the services of the respondents-writ petitioners. The said interim stay could not have been granted in the face of the judgments rendered by the Supreme Court, taken note of hereinabove in the cases of Suman Dutta (supra), and Sandeep Kumar Balmiki (supra). The grant of stay of termination will force the appellants to pay salaries to hundreds of terminated employees and allow them to discharge duties of public office. If, eventually the writ petitions are dismissed, it would not be possible to undo the actions taken in pursuance of the impugned interim orders. On the other hand, if the writ petitions are allowed, the respondents-writ petitioners can be restored their appointments and also paid salaries for the periods they are out of employment.
31. Even on prima facie appreciation, it appears to us that the learned Single Judge, despite observing that the ad hoc appointments were not made through a public process, failed to appreciate that the respondents-writ petitioners are not even entitled to claim regularization, in the light of the observations made by the Constitution Bench of the Supreme Court in Umadevi which has been noticed in Paragraph No.13 of the judgment of the Supreme Court in Renu (supra). Such appointments have been held by the Supreme Court to be not just illegal, but a nullity.
32. The appellants had filed their counter-affidavit, which was before the learned Single Judge when the 21 impugned order was passed. The materials relied upon by the appellants to state that the appointments were made completely illegally have not been adverted to. We find merit in the submission of learned counsel for the appellant that the mere fact that there was no complaint about the work of the respondents-writ petitioners, was no ground to stay their termination. By staying the termination, the respondents-writ petitioners were granted relief in the nature of final relief. Grant of stay of termination had actually caused irreparable loss and injury to the appellant, inasmuch, as they would have to pay remuneration payable to the respondents-writ petitioners, and to take work from them when the respondents-writ petitioners may not be entitled to hold the public office.
33. On the other hand, in case the respondents-writ petitioners succeed in their writ petitions, they can adequately be compensated by, inter alia, directing payment of salaries for the period that they remain out of service.
34. We are, therefore, inclined to set-aside the impugned order to the extent that the learned Single Judge granted stay of the termination of the respondents-writ petitioners' services and directed the State to take service from them and continue to pay their salaries. 22
35. Accordingly, the special appeals are allowed and the impugned order is set-aside to the limited extent, as aforesaid.
36. The learned Single Judge may proceed to dispose of the writ petitions on their own merits. The observations made by us on the merits of the case have been made for the purpose of dealing with the present appeals, and shall not come in the way of the learned Single Judge in deciding the writ petitions.
37. Pending application, if any, also stands disposed of.
(VIPIN SANGHI, C.J.) (RAMESH CHANDRA KHULBE, J.) Dated: 24th November, 2022 NISHANT